STATE OF RHODE ISLAND

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1 LC S STATE OF RHODE ISLAND IN GENERAL ASSEMBLY JANUARY SESSION, A.D. 00 A N A C T RELATING TO COURTS AND CIVIL PROCEDURE - MEDICAL MALPRACTICE Introduced By: Senators Polisena, Roberts, Sosnowski, Damiani, and Gallo Date Introduced: February, 00 Referred To: Senate Judiciary It is enacted by the General Assembly as follows: SECTION 1. (a) Findings. (1) Health care liability crisis: There is a major health care crisis in Rhode Island and many other parts of the country attributable to a dramatic increase in the cost of the present medical malpractice system resulting in a skyrocketing of medical liability insurance premiums leading to a break down of the health care system in many states. The experience of other states, such as California, which have enacted meaningful medical liability reform demonstrates that effective medical liability reform will address and resolve this crisis. () Effect on patient access and costs: The skyrocketing cost of malpractice insurance, both nationally and locally, has forced some physicians and health care providers to limit their practices, or in some cases abandon their practices, thereby restricting and reducing access to health care. In addition, the current civil justice system is adversely affecting patient access to health care services, better patient care, and cost-efficient health care because the current medical liability system is burdened with costly and ineffective procedures for resolving claims of health care liability and fairly compensating injured patients. () Delay: Medical liability claims, unlike many tort actions, often are not filed with insurers or health care providers for many years after the treatment was rendered, as a consequence of which substantial pre-judgment interest accrues. Nationwide data from the National Practitioners Data Bank of the department of Health and Human Services demonstrates that Rhode Island is the slowest state in the country to resolve medical liability claims. () Meritless claims: Notwithstanding the fact that total indemnity payments are

2 increasing, many meritless claims continue to be filed, as evidence by the high number of malpractice claims which are closed without any indemnity payment. () States in crisis: A number of states have experienced or are currently experiencing a crisis in their medical liability insurance markets, with soaring premiums and insurers either failing or leaving the market, causing some physicians and other health care providers to either cease practicing or to leave the state. () Availability of coverage: The unfavorable civil liability system has led many national insurers to discontinue offering medical liability coverage to health care providers. () Local environment: The Rhode Island market is experiencing many of the unfavorable trends which have adversely affected public access to health care elsewhere, including a significant reduction in the number of insurers willing to offer medical liability coverage in the state along with rapidly escalating malpractice premiums. () Necessity for legislation: The General Assembly, acting within the scope of its police power, finds and declares that the statutory remedy herein provided is necessary and intended to stabilize the Rhode Island medical liability market, to attract medical liability insurers to Rhode Island and to assure public access to affordable, high quality health care. (b) Purpose. -- It is the purpose of this act to implement reasonable, prompt, comprehensive, and effective health care liability reform designed to; (1) improve the access to health care services when health care liability actions have been shown to be a factor in the decreased availability of services; () reduce the incidence of defensive medicine, which can endanger patients and unnecessarily raises the cost of health care liability insurance; () ensure that persons with meritorious health care injury claims receive fair, prompt and adequate compensation; () reduce the time between the occurrence of a health care injury and resolution of the claim or suit. SECTION. Section of the General Laws in Chapter -1 entitled "Causes of Action" is hereby amended to read as follows: Limitation on malpractice actions. -- Notwithstanding the provisions of sections -1-1 and -1-1, an action for medical, veterinarian, accounting, or insurance or real estate agent or broker malpractice shall be commenced within three () years from the time of the occurrence of the incident which gave rise to the action; provided, however, that: (1) One who is under disability by reason of age, mental incompetence, or otherwise, and on whose behalf no action is brought within the period of three () years from the time of the

3 occurrence of the incident, shall bring the action within three () years from the removal of the disability. or, in the case of a minor, within three () years after the minor s eighth ( th ) birthday. () In respect to those injuries or damages due to acts of medical, veterinarian, accounting, or insurance or real estate agent or broker malpractice which could not in the exercise of reasonable diligence be discoverable at the time of the occurrence of the incident which gave rise to the action, suit shall be commenced within three () years of the time that the act or acts of the malpractice should, in the exercise of reasonable diligence, have been discovered. SECTION. Section -1-1 of the General Laws in Chapter -1 entitled "Evidence" is hereby amended to read as follows: Expert witnesses in malpractice cases. - - (a) In any legal action based upon a cause of action arising on or after January 1, 1, for personal injury or wrongful death filed against a licensed physician, hospital, clinic, health maintenance organization, professional service corporation providing health care services, dentists, or dental hygienist based on professional negligence, only those persons who by knowledge, skill, experience, training, or education qualify as experts in the field of the alleged malpractice shall be permitted to give expert testimony as to the alleged malpractice. (b) The plaintiff shall disclose the identity of such experts and the substance of the proposed expert testimony, as provided in Rule (b)()(a) of the Superior Court Rules of Civil Procedure, within one (1) year from the date interrogatories were filed requesting such information. In the event the plaintiff does not make the expert disclosure required hereunder the court may enter an order dismissing the case or precluding the plaintiff from introducing expert testimony at trial. The defendant(s) shall disclose the identity of defense experts and the substance of their testimony within sixty (0) days following plaintiff s disclosure, or within sixty (0) days after interrogatories are propounded to the defendant requesting such information, whichever shall last occur. In the event a defendant does not make the expert disclosure required hereunder the court may enter an order defaulting that defendant or precluding that defendant from introducing expert testimony at trial. SECTION. Section -1- of the General Laws in Chapter -1 entitled "Judgments, Orders and Decrees" is hereby amended to read as follows: -1-. Interest in civil actions. -- (a) In any civil action in which a verdict is rendered or a decision made for pecuniary damages, there shall be added by the clerk of the court to the amount of damages interest at the rate of twelve percent (1%) per annum thereon from the date the cause of action accrued, which shall be included in the judgment entered therein. Postjudgment interest shall be calculated at the rate of twelve percent (1%) per annum and accrue on

4 both the principal amount of the judgment and the prejudgment interest entered therein. This section shall not apply until entry of judgment or to any contractual obligation where interest is already provided. (b) Subsection (a) shall not apply in any action filed on or after January 1, 1, for personal injury or wrongful death filed against a licensed physician, hospital, clinic, health maintenance organization, professional service corporation providing health care services, dentist, or dental hygienist based on professional negligence. In all such medical malpractice actions in which a verdict is rendered or a decision made for pecuniary damages, there shall be added by the clerk of the court to the amount of damages prejudgment interest at the rate of twelve percent (1%) per annum thereon as follows: (i) Prejudgment interest shall accrue at the rate of five percent (%) per annum from the date of written notice of the claim by the claimant or his or her representative to the malpractice liability insurer, or to the medical or dental health care provider or the filing of the civil action, whichever first occurs., until the claimant complies with the Superior Court Rules of Civil Procedure, Rule (b)()(a) or with the Federal Rules of Civil Procedure, Rule (a)(), whichever applies; and (ii) thereafter, prejudgment interest shall accrue at the rate of eight percent (%) per annum. (c) Whenever a civil action has been assigned for trial to a specific date or week, and a party thereto asserting a claim seeks and obtains a continuance of the trial date, interest shall not accrue on such claim from the assigned trial date to the date when judgment is entered, unless the party opposing such claim consents to the continuance. (d) Post-judgment interest shall be calculated at the rate of twelve percent (1%) per annum and accrue on both the principal amount of the judgment and the prejudgment interest entered therein. (e) This section shall not apply until entry of judgment or to any contractual obligation where interest is already provided. SECTION. Chapter -1 of the General Laws entitled "Evidence" is hereby amended by adding thereto the following section: -1-. Certificate of merit to accompany medical malpractice complaint. - - (a) In any civil action asserting a cause of action for personal injury or wrongful death filed against a health care provider, the plaintiff or plaintiff s counsel shall be required to file, simultaneous with the filing of the complaint, a certificate of merit which meets the requirements of this section. These requirements are limited to claims where expert testimony is necessary to establish a prima facie case. (b) The certificate of merit shall attest to the following:

5 (i) that plaintiff, or plaintiff s counsel, has consulted and reviewed the facts of the case with an expert who the plaintiff or plaintiff s counsel reasonably believes: (a) is knowledgeable regarding the relevant issues involved in the particular action; (b) is qualified by knowledge, skill, experience, training, or education to testify as an expert in the field of the alleged malpractice in accordance with section -1-1; and (c) has no financial or personal interest in the outcome of the case under review; and (ii) that the expert has determined in a written report that there is a reasonable and meritorious cause for the filing of such action. (c) The written report from the expert shall be attached to the certificate of merit and shall contain each of the following: (i) the name and business address of the expert, and sufficient facts to support the conclusion that the expert is qualified by knowledge, skill, experience, training, or education to testify as an expert against the provider in accordance with section -1-1; (ii) a statement that the expert s determination has been based on an examination of the plaintiff, or an independent and thorough review of all of the applicable medical records and, if reasonably available, a physical examination of the plaintiff; (iii) a description of the appropriate standard of care that is expected of a reasonably competent health care provider in the same class to which the health care provider belongs, acting in the same or similar circumstances; (iv) the opinion of the expert, expressed with a reasonable degree of medical certainty, that the appropriate standard of care was breached by the health care provider named in the complaint; (v) the factual basis for that opinion; (vi) a statement of the actions that the health care provider should have taken or omitted to have complied with the standard of care; and (vii) a statement of the manner in which the breach of the standard of care was the proximate cause of the injury alleged in the complaint. (d) Where a certificate of merit is required pursuant to this section, a separate certificate and expert report shall be filed as to each defendant who has been named in the complaint and shall be filed as to each defendant named at a later time. In circumstances where a plaintiff files an action against a health care facility based on the doctrine of respondeat superior, a separate certificate and expert report shall be filed as to each such health care provider. (e) The contemporaneous filing requirement of subsection (a) of this section shall not apply to any case in which the period of limitation will expire or there is a good faith basis to

6 believe it will expire on any claim stated in compliant within ten () days of the date of filing and the plaintiff or plaintiff s counsel asserts in good faith that, because of such time constraints, compliance with the requirements herein was not possible. In such cases, the plaintiff shall have forty-five () days after the filing of the complaint to supplement the pleadings with the certificate of merit and expert report. This section shall not be construed to extend any applicable period of limitation, provided, however, that if the certificate of merit and expert report are filed within the period specified in this section, such filing after the expiration of the statute of limitations shall be considered timely and shall provide no basis for a statute of limitations defense. (f) If a certificate of merit is not filed within the period specified in this section the complaint is subject to dismissal for failure to state a claim upon which relief can be granted. (g) If the plaintiff or plaintiff s counsel files a certificate of merit which does not comply with each of the requirements in subsection (b), or a written report which does not comply with each of the requirements in subsection (c), the defendant to whom such certificate pertains may file a motion to dismiss which shall assert, with specificity, the grounds or basis by which the certificate does not meet the requirements of this section. (h) The court may, for good cause shown, order such further discovery as the court may direct to enforce the provisions of this section, including depositions of the expert or other persons. In the event the court finds, upon hearing, that the certificate of merit was not filed in good faith the court may enter such sanctions as the court deems appropriate under the circumstances, including, but not limited to, ordering the plaintiff or plaintiff s counsel to pay all reasonable attorneys fees and costs incurred in connection with the defense of the action. (i) For the purposes of this section, the term health care provider shall mean the same as that term is defined in section -.-(). SECTION. Section shall take effect upon passage and shall apply to any cause of action which accrues on or after the effective date of this act. Sections and shall take effect upon passage and shall apply to any action filed or commenced on or after the effective date of this act. Section shall take effect upon passage and shall apply to all actions pending on or after the effective date of this act. LC0

7 EXPLANATION BY THE LEGISLATIVE COUNCIL OF A N A C T RELATING TO COURTS AND CIVIL PROCEDURE - MEDICAL MALPRACTICE *** This act would: (1) lower the statute of limitations tolling period for minors to age eight; () require malpractice suits discovered after the statute of limitations has run to be commenced within one (1) year from the date of discovery; () require a malpractice plaintiff to make substantive disclosure of expert testimony within one year from the date such information is requested, and 0 days thereafter by the defense; () reduce the rate of prejudgment interest assessed on malpractice awards to % per annum until the plaintiff provides substantive disclosure of prospective expert testimony in accordance with court rules; thereafter interest would accrue at the rate of % per annum; () require that prejudgment interest be tolled when a plaintiff seeks and obtains a continuance of an assigned trial date; () provide that interest on malpractice awards would not begin to accrue until suit was filed; and () require that a certificate of merit accompany each claim for damages in a medical liability action. Section would take effect upon passage and would apply to any cause of action which accrues on or after the effective date of this act. Sections and would take effect upon passage and would apply to any action filed or commenced on or after the effective date of this act. Section would take effect upon passage and would apply to all actions pending on or after the effective date of this act. LC0

(Reprinted with amendments adopted on May 19, 2015) SECOND REPRINT S.B Referred to Committee on Judiciary

(Reprinted with amendments adopted on May, 0) SECOND REPRINT S.B. SENATE BILL NO. SENATOR ROBERSON MARCH, 0 Referred to Committee on Judiciary SUMMARY Provides for the determination of damage awards in